V.R. v. Registrar of Motor Vehicles, 2018 CanLII 107935

DECISION AND ORDER

Date: 2018-08-08

Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an impoundment of a motor vehicle under section 55.1 of the Act for driving while suspended

Between:

V.R.

Appellant

-and-

Registrar of Motor Vehicles

Respondent

Panel: Avvy Go, Member

Appearances:

For the Appellant: V.R., Appellant

For the Respondent: Sanjay Kapur, Agent

Place and date(s) of hearing: By Teleconference August 2, 2018

REASONS FOR DECISION AND ORDER

A. OVERVIEW

1A hearing was held on August 2, 2018, by teleconference, to consider the appeal of the Appellant pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "HTA" or the "Act").

2The Appellant's vehicle was impounded on July 2, 2018. The Appellant let one of his daughters use his car for the day. His daughter and her friend went to get something to eat. When they came out of the restaurant, the friend took the driver's seat without asking the Appellant's daughter. Knowing that she could not persuade the friend (with whom she had a past relationship) to move, the Appellant's daughter just gave in and let her friend drive. The Appellant's daughter did not know about her friend's previous criminal convictions and that his driver's licence has been suspended.

3The vehicle was stopped by the police. After determining the driver was driving without a licence, the officer proceeded to issue a notice to impound the vehicle pursuant to the Act.

4The Appellant appealed the impoundment to the Tribunal on the basis that the impoundment will result in exceptional hardship. The Appellant lives with his wife and a son. The Appellant's wife has some medical issues and cannot walk for an extended period of time. As a result, she relies on the vehicle for her medical appointments and other day-to-day activities. The Appellant's son has Down syndrome and relies on the Appellant's wife to drive him around to appointments outside of their community.

5While the impoundment of the vehicle has caused inconvenience, the Appellant does have an alternative to the impounded vehicle and has managed, with family support, to maintain their activities and attend to medical appointments when needed. Accordingly, I confirm the impoundment.

B. ISSUES:

6The issue under the appeal are as follow:

Will the impoundment result in exceptional hardship?

EVIDENCE:

7The Appellant lives in Stony Creek, and works in Bolton. Apart from the impounded vehicle, he also owns a truck, but as the Appellant explained, the truck is not a "family vehicle". The Appellant uses the truck to drive himself to Burlington, where he meets up with a friend to commute to Bolton.

8The Appellant's wife uses the impounded vehicle for her day-to-day needs, in part because that vehicle has air conditioning, while the truck does not.

9The Appellant explains that although he gave permission to his daughter to use his vehicle, he did not give permission to his daughter's friend. He was not aware that the friend had driven his car and he knew nothing about the friend's criminal and driving records.

10As his family vehicle has been impounded, the Appellant has to rely on his two other daughters and their partners to help with a number of things including: driving the Appellant's son to Burlington to work, driving the Appellant's wife to her medical appointments, and picking up groceries. The Appellant explains that, notwithstanding her medical issues, his wife is fiercely independent, and she does not want to rely on others to drive her around. Besides, the Appellant's daughters live in other communities and have their own family to look after. They too have been affected by the impoundment, and they are doing what they can to help out.

11The Appellant also expresses concerns about the cost he has to pay to recover the impounded vehicle. The driver in question has expressed remorse, but has not actually offered to pay for the cost of recovering the vehicle. In any event, the Appellant does not believe the driver has any money to pay. The Appellant may have to call on his family to provide a loan to cover the cost of retrieving his vehicle.

12Both the Appellant and his wife are over the age of 65. The Appellant is working full-time as a forklift operator. His wife has retired after working for many years in the social service field and is living on a small pension, plus CPP and OAS. They have a modest income with which they support themselves and their son.

13The Appellant submits that instead of impounding his vehicle, the police should have taken immediate action against the driver. The Appellant submits it makes no sense to punish him when he has no knowledge of what the driver has done and has never given him permission to drive his car. Having said that, the Appellant is not relying on the other grounds for appeal, namely, he is not claiming that his vehicle was stolen at the time, or that he has exercised due diligence to determine the validity of the driver's licence.

C. LAW:

14Under the HTA, where a police officer is satisfied that a person was driving while suspended under certain provisions of the HTA, the officer is required to detain and impound the vehicle. Section 55.1 of the HTA sets out the scope of the authority, the impound period and other requirements and obligations. The impound period is 45 days if there has been no previous impoundment in the last two years. If there is a previous impoundment, the impound period is 90 days.

15Subsection 50.2(3) of the HTA lists four grounds on which an owner may appeal and on which the Tribunal may order the Registrar to release the motor vehicle. The Appellant appeals on the basis of paragraph (d) of subsection 50.2(3) which states:

50.2(3) The only grounds on which an owner may appeal under subsection (1) and the only grounds on which the tribunal may order the Registrar to release the motor vehicle are,

(d) that the impoundment will result in exceptional hardship.

16Section 10 of O. Reg. 631/98 (the "Regulation") sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement, as set out in s. 10(1) of the Regulation, is that there must be no alternative to the impounded vehicle. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:

...the owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.

17If the Appellant is able to establish that there is no alternative to the impounded vehicle, then the Tribunal shall consider, under s. 10(1), whether the impoundment will result in:

(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or

(b) a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used.

18In limited circumstances described below, the Tribunal may also consider whether the impoundment will result in the following types of losses, listed in s. 10(2) of the Regulation:

a. financial or economic loss to any person;

b. loss of employment or employment opportunity to any person; or

c. loss of education or training or of an educational or training opportunity to any person

19The financial, employment and educational losses listed above may only be considered if all of the criteria listed in s. 10(3) of the Regulation are met:

(a) no alternative to the impounded motor vehicle is available;

(b) the loss will be immediate, significant and lasting;

(c) the impact of the loss will be upon a person ordinarily transported by the motor vehicle; and

(d) the impact of the loss,

(i) will be upon a person other than the person whose driving while his or her driver's licence was under suspension resulted in the impoundment of the motor vehicle, and

(ii) will not be a result of a loss by the suspended driver of the type set out in clause (2) (b), (c) or (d).

20Pursuant to s.10(2) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

21Following a hearing, under s.50.2(5) of the HTA, the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle.

D. ANALYSIS:

22There is no question that the impoundment has affected the Appellant and his family in different ways. I also appreciate the Appellant's wife has been impacted by losing some sense of independence because now she has to rely on others for her daily activities. The Appellant's daughters (and their partners) have to help drive the Appellant's wife and son around, while still attending to their own family's needs, which cannot be easy on two seniors and their special needs son.

23However, the fact that the Appellant's daughters have stepped up confirms that there is an alternative to the impounded vehicle available to the Appellant. The Appellant's daughters have filled the void created by the impounded vehicle by helping the Appellant's wife and son. In addition, the Appellant owns another vehicle, albeit not one that is most suitable for his family needs. But with this other vehicle, the Appellant has been able to continue to go to work as he has done in the past, without having to suffer any income loss.

24Given that there is an alternative available, the Appellant therefore has not established that he will suffer exceptional hardship, and on that basis I also cannot consider the financial loss that may follow as a result of the impoundment.

ORDER:

25For the reasons set out above, pursuant to s.50.2(5) of the HTA, the Tribunal confirms the impoundment of the Appellant's motor vehicle. The vehicle will remain at the impound facility for the remainder of the impoundment period.